(1.) The District Board of Manbhum, who is the defendant in the suit, is the appellant. It is a body corporate constituted under the Bihar and Orissa Local Self-Government Act. By Section 79 of that Act, it has the authority to plant trees by the side of the road. The plaintiffs, who are the members of the joint Hindu family and residents of mohalla Dulmi within the Municipality of Purulia, instituted the suit for damages on the allegation that one jore tree standing on the District Board road fell on their residential house situated by the side of the road, and caused damage to its tiled roof and pucca walls and also smashed three rickshaws of the plaintiffs, which were then kept there in the compound. Their case was that in the year 1943 strong winds used to blow in that area and as a result thereof some trees had fallen and, therefore, they apprehended that the tree standing on the road in front of their house might also fall and damage their house. On this apprehension they wrote a letter to the District Board on 7-5-1943 and drew its, attention to the danger apprehended and requested that the branches extending on their premises should be lopped off, and, if possible, the tree itself might be cut down. Their allegation was that in spite of their information given to the District Board, the District Board did neither chop off the branches nor Cut down the tree with the result that on 26-5-1945 one of those jore trees, which stood there since some time before 1931 when the plaintiffs' house was constructed, got actually uprooted by the storm and fell on the house of the plaintiffs causing damages as stated above. In the plaint they claimed that as a result of all this they were put to a total loss of Rs. 887/14/-. Out of this, the loss of Rs. 827/14/- was caused on the first day, i. e., on the day when the tree fell on the house and that of remaining Rs. 60/- on days subsequent thereto as the rooted out tree was left lying on the premises in spite of reminders till 30-11- 1945.
(2.) The suit was contested by the defendant District Board. It contended that the tree was not standing in a dangerous condition and that the reports submitted to it, both by the Sectional Officer and the Engineer, were to the effect that the trees there were in quite sound state and that there was no fear of those trees being uprooted in the near future. It further, inter alia, pleaded that the facts alleged in the plaint did not show any cause of action against it and the suit was barred by the special law of limitation, as prescribed in Section 146, Local Self-Government Act, and that no proper notice was served on the defendant. Its specific defence was that the tree which had fallen had been planted by the District Board in the performance of the statutory duty imposed upon it and its fall was not due to any negligence on its, part or due to any wilful default in the performance of that statutory duty. It was, according to it, a, case of vis major for which the defendant could not be held liable in law. It also pleaded that the damage caused by the fall of the tree on the tiled roof of the house did not amount to more than Rs. 129/- and the cost of repairing the rickshaws could not exceed Rs. 80/- in all. On these pleadings the Court framed the following issues:
(3.) Are the plaintiffs entitled to claim any damages? If so, to what extent?
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